Why do people sue? Not for the money.
Posted: July 20, 2010 Filed under: Swimming | Tags: Adventure travel, Attorney at law, city, drowning, Lawsuit, Outdoor recreation, parents, summer camp, swimming pool Leave a commentAnswer their questions and you don’t give someone a reason to find a lawyer.
The headline is Parents file suit against city and club. The lawsuit is over the death of a 6 year old boy who drowned in a city pool less than a month before.
Could you predict this lawsuit was going to happen? I think you could if you were the city. Here are four hints that maybe you are going to be sued.
Hint #1 Even the attorney says the lawsuit is to get information.
“From the family’s point of view, it has been three weeks (since their son died) and they have no information on what happened,” Whitaker said.
“They still don’t know what actually happened.”
He said the lawsuit seeks monetary damages for wrongful death, but a big part of the filing is to have access to information about how the child died.
“All my clients are hearing right now is second-hand,” he said. “It’s terrible for them.”
Hint #2 If you plan to get sued you will get sued.
City officials referred all questions regarding the lawsuit to City Attorney Allen Betz. An employee at Betz’s office said he was out of the office Friday and could not be reached for comment.
Hint #3 If you don’t answer a parent’s questions you are going to get a lawsuit.
“We just want to know what happened. The family feels the only way they will get answers is through the lawsuit.”
Parents wanted to know what happened to their child and the only answers they received was “call the city’s attorney.” There are three major and stupid reasons for doing this.
1. The attorney was not there and therefore, can’t answer any questions.
2. Attorneys don’t answer questions anyway.
3. Attorneys intimidate people. Who wants to talk to an attorney?
I know, I’m an attorney!
What was another hint?
Hint #4 The lawsuit was filed 25 days after the death. People never file lawsuits that soon.
Within three weeks of the death, the family has all ready hired an attorney. Whether because they felt so frustrated that they felt they had no choice, or because they had to fight fire with fire (attorney v. attorney) or a combination of reasons, that should be a hint you need to do something or pay attorneys!
The only real legal issue in the article is the miscommunication between the parents and the pool employees.
In the lawsuit, Whitaker said Terry Lavka told a woman stationed at the sign-in table when he took his son there for the summer day camp that Samuel Lavka was afraid of water, could not swim and should not be allowed near the big pool.
“They didn’t want him in the pool because he couldn’t swim,” Whitaker said. “They were told that, and the parents believed those instructions would be followed.
If someone tells you or one of your employees something about their concerns, fees or beliefs about what you are going to do, you need to correct them or pay attention to them. Here the parents believed that because they had told the pool employees something that was the way it was going to be.
This is a tragic accident. A six year old boy drowns in a city pool. The tragedy is compounded because the parents still don’t know what happened to their son. Their grief will not end but be compounded for years as the litigation drags on, and they grasp tidbits of answers about what happened.
For other articles about this issue see: It’s Not Money and Serious Disconnect: Why people sue.
What do you think? Leave a comment.
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Another Way to Teach CPR
Posted: July 15, 2010 Filed under: First Aid 1 CommentWhen I was teaching knots to Scouts I used to use a Black Rat Snake. I made the knot, I just used the snake to explain the basics. Eleven year olds where 100% attentive and watched my hands while holding the snake.
This is a great way to teach CPR.
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First Aid has its Limits. By law!
Posted: July 13, 2010 Filed under: Criminal Liability, First Aid | Tags: criminal liability, first aid, protocols 2 CommentsHowever, you need to understand the law as well as first aid. Especially if what you are being taught is an illegal act.
A question posted on Facebook by a first aid training organization asked the question of its face book fans. The responses were all along the lines of a not been trained to perform the illegal act. Most of the answers were correct. However, what has me concerned is the issue that is an issue floating around in the wilderness first aid world.
The question asked about doing an illegal act. The question was, would you stitch a wound if you were in the wilderness? The vast majority of the answers was no. There were a few yes’s, most of them qualified.
There the correct answer is no it is an invasive act. Therefore, it is illegal for anyone other than a physician, or dependent upon the state, someone under a physician’s direct supervision and control. There seems to be a real issue on what someone can do in a first aid situation. Most people who received wilderness first aid training believe they can do anything if they have a doctor or physician advisor or who has taught them how to do it. There are many physicians who have the same belief.
(Remember this is a legal blog: no morals, no ethics just law.)
This blog is not the place to do a complete legal analysis of this issue. However, a short synopsis is appropriate. All first aid training divides the first aid provider into two groups: those who are licensed to provide first aid care and those who are not. A licensed first aid provider is an EMT, paramedic, nurse, nurse practitioner, physician assistant, or physician, etc. A person who has taken a test administered by the state and required by the state to take the test before practicing is a licensed health care provider. Non-licensed first aid providers are everyone else. The non licensed category includes Boy Scouts, wilderness first aiders, Wilderness First Responders, any person happening by the accident. Dependent upon the state where you are operating, a licensed first aid provider may be allowed to do invasive acts. No state allows a non-licensed first aid provider no matter what the training, to do any invasive act.
An invasive act is one where the first aid provider does anything more to an open wound other than clean and bandage the wound. It does not matter what they had been trained to do, or what they think they can do.
If it is a criminal act the person receiving the treatment, the injured person, cannot waive their right and allow the person to do it. It is still a criminal act the matter. The next legal issue is, no criminal act is protected any state Good Samaritan act.
I guess what I find disturbing is the idea that if the person has been trained to do this it would be okay for them to do it. That is not the case. You can be trained to perform heart surgery, but if you do not have a license to practice medicine it does not matter if you are the best heart surgeon in the world it is still a criminal act. If a physician will be standing in the room next to you and has agreed to abide by the state laws you may or may not be able to do something under that physician’s supervision and control. Supervision and control is defined differently in each state. In most states, it means the physician is in the same room where you are performing the procedure you have been trained in.
Does this mean that you get arrested if you do something like this? It totally depends on the outcome. If it’s a good outcome possibly not, if it’s a bad outcome possibly.
The issue is not my paranoia, the issue is the first aid training being received based on the egos of the instructors. And I’m not saying this to condemn any first aid instructor. I’ve met dozens and they are wonderful people. What I’m saying is we all love to impress people; we all love to stand in front of a group of people and tell them how to do things, to educate them. We want them to like us. This is one of the reasons why we teach. If that goes so far as to teach people that if they knew a little more they could do a little more that is where we cross the boundary. Sometimes it’s more than what you have been trained, sometimes it’s whether not you are teaching someone to violate the law.
So am I overly paranoid about that issue? Probably. Is my concern legally correct? Yes.
For more information about these issues see Legal Issues in Wilderness First Aid: Value of various first aid certificates and training, Legal Issues in Wilderness First Aid, and Legal Issues in First Aid #3: The prescription drug conundrum
See http://www.facebook.com/wildernessmedicine?ref=nf
What do you think? Leave a comment.
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Take cell phone with you in the back country during avalanche season the future may be used to find you.
Posted: July 8, 2010 Filed under: Avalanche, Search and Rescue (SAR) Leave a commentTechnology developed to spy on cell phone conversation may be used in Europe to locate avalanche victims.
The system developed by French company called international mobile subscriber identity searches for cell phone signals within its range. The technology was developed to be able to spy on cell phone conversations.
The technology uses a box about the size of a laptop with a directional antenna which enables a mobile phone to be localized. If the mobile phone is switched on the device can locate the mobile phone within a 2 km(1.2 mile) area. Testing is ongoing to make sure the device does not interfere with avalanche beacons or ReCCOS.
This would be a real boon in the search and rescue industry. It could also be a disaster. One of the gates keeping idiots out of the backcountry is the cost of an avalanche beacon. $200-$500 it is a significant investment for someone who loves to go backcountry skiing. Each weekend cell phones are advertised for free when you sign up for a long term cell phone plan.
The issue is, if you’re willing to spend $200-$500 for beacon, you will also spend the time to learn how to use it and learn about avalanches. If you can be rescued with the cell phone, you probably won’t learn much.
See Spook’s gadget could revolutionize mountain rescue
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New Zealand is reporting 29 fatalities in adventure tourism in five years
Posted: July 6, 2010 Filed under: Uncategorized Leave a commentFirst of three reports due on adventure activities in the country.
Six lives in marine activities seven in one canyoneering accident and four in aviation accidents make up the bulk.
See Adventure tourism review due at the end of May and 29 deaths in 5 years revealed in the adventure tourism report.
To see the general review of the report and the survey that was done by the government see Consultation for the Review of Risk Management and Safety in the Adventure and Outdoor Commercial Sectors
The first two reports can be found at International stock-take of risk management and safety in the adventure and outdoor commercial sectors and Stock-take of risk management and safety provisions in the adventure and outdoor commercial sectors in New Zealand. The final report is due out this May, 2010.
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Another PMI Webinar: A Guide to Compliance and Safety in Post Fall Rescue for Industry
Posted: July 1, 2010 Filed under: Uncategorized Leave a commentA Guide to Compliance and Safety in Post Fall Rescue for Industry
The webinar will review
ANSI Z359.2 outlines a Comprehensive Managed Fall Protection Program for industry. One component of this involves preparing for rescue in the event of an accident. This presentation will provide an overview and guidelines for equipment and training to ensure “prompt care” as mandated by OSHA.
To sign up go to: https://www2.gotomeeting.com/register/259423987
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Blog heading you cannot advertise yourself out of a crisis but Who cares, he didn’t cheat on me, why is he apologizing to me?
Posted: July 1, 2010 Filed under: Uncategorized Leave a commentManageable posted a blog Three crisis survival lessons for the social media age. Lesson number two was you cannot advertise out of a crisis. The blog looked at Tiger Woods apology that occurred had occurred a few days before.
The central scene in the article is apologizing later after questions have gone unanswered for months is no way to deal with the crisis. With so many PR handlers around Tiger’s PR team fumbled when things did not go smoothly. For months, they left people in the media wondering what it happened, which only increased the amount of attention that was brought to the issue.
This blunder on the part of the PR team was further heightened because the speed that news media and rumor travel today. By not dealing with the issue immediately the void created its own disaster.
I agree with the article. If you have family members who want to know what happened, and you don’t tell them they will try and find out any way they can. If you are quiet and ignore the questions you will create more controversy more issues and more arguments than you ever could, by being honest with the people.
By leaving the questions unanswered you create a vacuum that sucks in any information about the problem that comes near it. You must fill that vacuum with honest answers or at least honest statements that you don’t know the answers or suffer the fate of media attention that you do not need or want.
See 3 Crisis Survival Lessons for the Social Media Age.
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Working a Grand Canyon River Trip
Posted: June 30, 2010 Filed under: Uncategorized 1 CommentI’ll be leaving for the Grand Canyon private river trip from June 30 through July 23. I’ll be working for OARS (www.oars.com) If you leave a comment during that time I won’t be able to moderate it until I return. I’ve scheduled posts to appear on Tuesday and Thursday while I am gone.
Why do I moderate posts. Because it is amazing how much spam and advertising you can get on a blog.
Have fun while I’m gone, I will.
A father of a deceased skier pushing for a helmet law in New Jersey.
Posted: June 29, 2010 Filed under: Ski Area Leave a commentAustralian study shows requiring helmets reduces participants in the activity.
Death of 12 year old daughter in 1988 fuels pushed by father for your kids to wear helmets. The young girl died after being hit by another skier.
The law does make parents liable, rather than the ski areas, if a child does not wear a helmet while at the resort. Fine of $25 to $100 are proposed.
So with all of the push to get kids’ outdoors, this law will push back and keep kids inside during the winter.
Why not put that energy and money into doing something good. Buying helmets for under privileged youth so they can go skiing and boarding rather than writing a law that will prevent them from going skiing and boarding.
Would you send your kid to go skiing, even if it’s free, if you face a fine of $100?
Why not provide an educational program for all skiers on what helmets can do and why? Why not take the money and time and provide discounts on helmets so anyone can buy or rent a helmet? Why not incentivize rental programs to provide free helmets?
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See Morris County doctor pushes for N.J. law requiring helmets for young skiers.
YOU HAVE GOT TO BE KIDDING
Posted: June 29, 2010 Filed under: Criminal Liability, Whitewater Rafting 5 CommentsA raft guide was arrested the other day because he rescued a stranded girl.
A 13 year old girl was rafting with Arkansas Valley Adventures. She ended up stranded on a rock in the river. A raft guide from Arkansas Valley Adventures against the sheriff’s orders jumped into the river and rescued the girl.
The sheriff arrested the raft guide for obstructing government operations.
Let’s look at this without going nuts…….
Who has the most experience in whitewater?
1. The raft guide
2. Any raft guide
3. Alpine Search and Rescue
4. Clear Creek County Sheriff’s department
I’m pretty confident the correct answer is 1; however credit will be given for answer 2. I’ve done legal work for alpine Search and Rescue and know a lot of them. A great group of dedicated rescuers who do not have any whitewater experience.
Who is going to affect the rescue quickly and safely?
1. The raft guide
2. Any raft guide
3. Alpine Search and Rescue
4. Clear Creek County Sheriff’s department
Let’s see, this is a tough one. The raft guide who is right there, the sheriff who is trying to figure out what to do or Alpine SAR who are volunteers that have to be organized. Raft Guide wins again.
Are there a lot of questions that need to be answered here other than how low is the IQ of the Clear Creek County Sheriff? Or maybe it is an ego issue.
Clear Creek County just spent thousands of dollars on a kayak park. Who is going to go there if you risk being arrested if you attempt to help a friend? Hold on, I’ll get your paddle for you and a $150 ticket from the ego with the badge.
Support Arkansas Valley Adventures because they are standing behind their guide.
Notify the sheriff and let him know what you think: webadmin@clearcreeksheriff.us or call (303) 679-2376
Notify the Clear Creek County District Attorney and let them know what you think: 303-569-2567.
Let Clear Creek County know how you feel by posting on their Facebook page: http://www.facebook.com/pages/Georgetown-CO/Clear-Creek-County-Colorado/130701711250.
See Raft guide arrested after helping stranded rafter on Clear Creek
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Lawsuit filed over death caused by zip line to man riding chair lift.
Posted: June 24, 2010 Filed under: Ski Area, Zip Line 1 CommentThis is complicated and confusing, but from what I can tell a zip line malfunctioned and it caused a man to fall to his death who was riding a chair lift over the zip line.
The facts just start bad. The deceased was on his honeymoon. He and his new wife had ridden one chair lift up to ride the zip line at Heavenly Mountain Resort. Once they got to the top of the lift they were told the deceased was too tall to ride the zip line. He and his wife wanted to walk down the mountain but they were told they had to ride the chair lift back down.
While riding down, a retrieval rope for the zip line became entangled in with the chair’s comfort bar. (Safety bar as described in the article.) The retrieval rope flipped the comfort bar up and rocked the deceased out of the chair. He fell 50’ to his death.
See Family of man killed at Heavenly to file suit
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Editorial wants the Government to put an upper limit on rafting water levels
Posted: June 22, 2010 Filed under: Whitewater Rafting 1 CommentPart of me is against this, part of me is not sure.
An article Time For Sensible Whitewater Rafting Regulation has postulated that the state should tell whitewater rafters in West Virginia at what water levels they can open rafting to commercial customers. Part of my concern is the reasoning that the state has or is the expert in whitewater rafting. We all know that is not true. When you are the power to arrest or fine or limit, a government and/or individual always abuses those powers.
Commercial operators want to make money so they may set those limits to far apart. (On one section of the Arkansas all of the deaths occurred at low water, not high water levels.)
Who should set these limits? If limits are to be set, then a committee of government, commercial and whitewater experts should make those decisions. (That should stall the proposal for at least 10 years.)
Twenty years ago, economics would have forced an outfitter to impose personal limits. The press about a fatality would drop the number of people going to an outfitter considerably and the outfitter in response would make changes. An example of that is the first outfitter on the Arkansas to use helmets (bicycle helmets) did so after a fatality. People going rafting would be concerned about the risks and not go with a dangerous outfitter.
I also think that outfitters would change because they did not dealing with a fatality. Not the legal issues but the personal issues of having someone die on a trip with you.
Both issues have gone by the wayside. Go marketing and so many people have all but eliminated the issues that a fatality would cause. Any I believe that once someone dies, you deal successfully; you maybe grow a little immune to the issues of dealing with a fatality. I hope not though.
So where does this go. Probably the issue of setting limits will grow legs and the state will take it on. Probably the state will take credit for limiting fatalities. Probably those people who want to push the limits will find some way of doing so not matter what someone sitting on the side line believes. No matter who believes they have the right to tell you how to die.
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Aspen Skiing Co. requires helmets for Salaried employees on the mountain
Posted: June 17, 2010 Filed under: Ski Area Leave a commentBecause we don’t care about hourly employees?
I know this is an attempt to deal with the real, government, political and other issues of skiing and helmets. However, the announcement just seems wrong to me.
500 salaried Aspen Skiing Company employees will be required to wear a helmet while on the mountain. (How many of those administrative assistants, cooks, janitors, etc. are ever on the helmet is another question.)
Look at it this way. An hourly employee has a severe head injury on the mountain. The parents go to Aspen and say, why was my son not wearing a helmet? The answer, no matter what Aspen Skiing Company says, is going to be, because we did not want to spend the money on hourly employees.
Yes Aspen is doing a good thing and trying to appear responsible with this announcement. However, there is no way to win this one. Either you protect all employees equally or none.
See Aspen To Require Helmets For Salaried On-Mountain Employees
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PMI July Webinar: A Guide to Compliance and Safety in Post Fall Rescue Industry
Posted: June 16, 2010 Filed under: Search and Rescue (SAR) Leave a commentAs I mentioned in PMI Webinar on how to use and retire a rope PMI provides tons of information and great webinars on using ropes and gear. Here is information on PMI’s next one scheduled for July 6, 2010.
If you are part of the ropes, SAR or rescue industry I would strongly urge you to attend. Sign up here.
Yuppie 911
Posted: June 15, 2010 Filed under: Search and Rescue (SAR) 1 CommentTechnology created in labs is creating headaches for SAR in the backcountry. Personal Locator Beacons are being used to ask for drinks of water.
Last October three hikers in the Grand Canyon used their Personal Locator Beacon (PLB) three times. The first time they activated their PLB because they ran out of water. The second time because the water they found was salty. The third time a helicopter was dispatched, the group triggered their PLB, and they were evacuated and charged with creating a hazardous condition for the rescue team.
This is no longer an extreme example, it is becoming the norm. See Alpine Rescue Team needs your help – PLB false alerts in Berthoud Pass (Colorado) area, This is starting to become stupid, Well they found him. He thought his PLB was an avalanche beacon. and Avalanche Beacons and other electronic items.
These stories just encourage legislators and others to charge for rescues. The theory is it will discourage these idiots from going in the backcountry and generate revenue. However, that creates other, greater problems. See So I do not plan to die, but I am stupid so the law says I have to spend $500 so you can find my body….. and Charging for Search and Rescue rears its Ugly head again.
The article surmises that the technology encourages idiots to go into the backcountry. One of the Grand Canyon hikers was quoted saying “If they had not been toting the device that works like Onstar for hikers, “we would have never attempted this hike….“
SAR professionals agree that the technology encourages the idiots to go into the backcountry.”In the past, people who got in trouble self-rescued; they got on their hands and knees and crawled out,” says John Amrhein, the county’s emergency coordinator. “We saw the increase in non-emergencies with cell phones: people called saying ‘I’m cold and damp. Come get me out.’ These take it to another level.“
Rocky Henderson of Portland Mountain Rescue had this comment on 8 hikers who triggered their PLB on Mt Hood when the weather turned bad: “The question is, would they have decided to go on the trip knowing the weather was going bad if they had not been able to take the beacons,” asks.”
The head of California SAR has labeled PLB’s Yuppie 911.
See Tired from a tough hike? Rescuers fear Yuppie 911
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Complaint Forms
Posted: June 10, 2010 Filed under: Uncategorized Leave a commentOr how to really make a customer mad.
I was reading a risk management training document today from an outdoor recreation trade association. At the end of the document, as usual, there was an appendix of forms. One of the forms was a complaint form. I started to chuckle about the idea that you have a mad or frustrated customer who has a complaint at your outdoor program and your hand them a form.
What a great way to make an unhappy customer angry.
Why do you need a record of your complaints? Instead of compiling a list of complaints, just solve them. Listen to your customer, find out why they are unhappy and solve their problem. At least listen.
Do you think the customer is going to be happy filling out a form, which is going to be either filed in a circular file or actually filed and forgotten? An angry or upset customer wants results. A result is using your ears and the mass of jelly between your ears to respond.
Don’t kill trees to make customers madder. Listen to them and respond.
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What about idiots lost in the backcountry?
Posted: June 8, 2010 Filed under: Search and Rescue (SAR) Leave a commentYellowstone planning on banning cell phone signals in the backcountry.
Yellowstone National Park has created a plan for cell phone towers in the national park. The plan will move cell phone towers from sensitive and aesthetically valuable areas to less aesthetically pleasing areas. The plan will effectively remove internet signals in the back country. The plan will also prevent cell signals in several of the old lodges in the park.
Of course the biggest concern is rescuing lost and endangered backpackers in the wilderness areas.
However, only idiots rely on cell phones to save them in the backcountry, (See The Interview provides a lot of information on why the @#%(@ got lost.) es, there have been tons of rescues because the person in need had a cell phone. BHowever,are they in the backcountry and in trouble because of their reliance on technology?
Maybe if people are told that their cell phone can’t be used, they won’t do stupid things or need rescued? Is that wishful thinking?
It is probably a balancing act, some people in greater trouble because they can’t call for help versus less people in trouble. For the rest of you, who understand the issues and how to prepare for a backpacking trip, you won’t have to worry about the person in the camp next door reviewing the latest baseball stats.
See the badly named article Yellowstone Bans Cell Phones.
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This came from the UK: Extreme sports killing those over 70 (years of age).
Posted: June 3, 2010 Filed under: Uncategorized Leave a commentSupposedly, the number of fatalities from diving, mountaineering and skiing went from 5% in 2006 to 20% in 2009. Those over the age of 70 make up only 5% of the number of people participating in those sports.
The article also quoted someone who stated: “The participation in hazardous activities is much safer than what it was five years ago. The reality is that 70s is the new 50s – we are much fitter and aware of opportunities to take advantage of these sports.”
Wel,l that is good news….I think.
See Extreme sports killing the over 70s and Pensioners living life on the edge.
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In the Grand Canyon
Posted: June 2, 2010 Filed under: Uncategorized Leave a commentI’ll be leaving for the Grand Canyon private river trip from June 3 through June 21. If you leave a comment during that time I won’t be able to moderate it until I return. I’ve scheduled posts to appear on Tuesday and Thursday while I am gone.
Why do I moderate posts. Because it is amazing how much spam and advertising you can get on a blog.
Have fun while I’m gone, I will.
Changes from OSHA that will affect the Outdoor Recreation Industry.
Posted: June 1, 2010 Filed under: Uncategorized Leave a commentWorking with OSHA is always difficult in our industry because we know the best ways to keep people safe in our situations. However, OSHA regulations sometimes force us to ignore those.
OSHA’s new concern is employers either intentionally or unintentionally encourage employees not to report injuries. In some cases, the medical bills are paid by the employer and not reported. In others the employer through a system of rewards or other ways has created an environment encouraging employees not to report their injuries.
The obvious example is the minor injury and the employer pays for the medical costs out of the company. The programs that will be difficult are those where an incentive program is set up to encourage employees not to get injured at work. The employees take care of their own injuries or just plain do not report their injuries not to lose those incentives, with or without the employer’s knowledge or support.
Either way is a $70,000 fine per occurrence.
See A Conversation With Assistant Secretary for OSHA Dr. David Michaels – What to Do About Safety Incentives?
For more information about OSHA record keeping see Recordkeeping Policies and Procedures Manual or OSHA Recordkeeping Handbook.
The next issue is OSHA is increasing its fine structure. Violating OSHA regulations is going to be more expensive. Violating OSHA regulations two or more times in Five years could be 300% more expensive.
See New campaign launched for harsher OSHA fines, OSHA increases fines for serious violations or OSHA Announces an Increase in Civil Penalties and a Severe Violators Enforcement Program.
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I found a release on the internet. It will work right!
Posted: May 25, 2010 Filed under: Release (pre-injury contract not to sue) Leave a commentYou plan on searching the internet about your next surgery also?
Once a week I receive an email from someone looking for a free release. Once a week I tell them they get what they pay for. However, I’m tired of writing that every week so now I’m going to blog about it and just refer them to the blog.
1. Why your release must be written by a lawyer
Releases are contracts. A release or as used in the south a waiver, is a contract were in advance of any injury one party agrees to waive or release the negligent party from any claims or damages.
If you understood that, you might be qualified to write a release, but I doubt it.
Releases vary according to the following factors:
The type of activity or program you are offering. If your state has a law affecting your activity such as equine activities or rafting, then your release must match those state laws.
The type of entity or business is important A governmental entity such as a college program or a recreation center as different defenses and needs from a commercial rafting activity. A commercial for profit business does not have the benefits of governmental immunity. Similarly, a governmental entity does not have the same benefits of some state statues protecting other activities.
The clientele you are working with. If you are working mostly with minors, adjudicated youth, or other special populations your release must be written differently than a release for adults or other communities.
Language: legalese. Most states require specific language in a release to be valid. That language must be exact in some cases. That language must also not contradict itself. I’ve seen more than 50 releases that are poorly written that prevent a lawsuit in one paragraph and then give back the right to sue in the next paragraph.
More Legalese. One of my favorite issues is a release that tells the injured plaintiff how to sue and win by beating the release. Thirty percent of the releases I’ve read are written that way.
Too much Legalese. Like baking a cake, too much of the good stuff can kill the taste. There are several states that have stated that the wrong language in a release can be sued to void the entire release.
Here I’ll help a little on you do it yourself project.
- Releases must be written by an attorney.
- Your release must use the word Negligence
- You must have a Jurisdiction and Venue clause in your release.
- Your release must describe the risk.
- Your release must have a heading that points out the importance of the release.
- Include the proper list of people to be protected by the release.
- Your release must be in English
- Your release must be readable; the print must be larger enough to see
- Your release must be separate and distinct from all other documents.
- Your release needs a signature line.
The law changes. The only constant in life is change. That is doubly so when writing about the law. Here again do you want to spend your time running your business or paying for a service to check and see if the law concerning releases has changed. Then you must interpret the changes in the law or the cases to see what they mean to your business and whether or not you need to make a change.
2. Why paying for a well written release will save you money?
I charge $1500 to write a release. If you are making $60,000 per year in your business that may seem like a lot of money. At $60,000 a year you are making $30 per hour or $240 per day. The average trial in an outdoor case lasts ten days. I tell my clients that for every day in a trial they will spend three days prepping for trial. If your deposition is two days you will spend six days preparing for your depositions. Figure another ten days are lost answering discovery as well as twenty days getting your attorney up to speed before trial.
| Issue | Hours |
| 10 Day Trial | 80 |
| 30 Days trial prep | 240 |
| 2 days of deposition | 16 |
| 6 days deposition prep | 48 |
| 10 days discovery | 80 |
| 20 days attorney meetings | 160 |
| Total | 624 |
That is $18,720 of lost time. I’ve not calculated miscellaneous travel time and worry. If you take 1/3 of your time away from your business in one year, will your business survive? How are you going to hire someone to replace you, if possible, at your business while you are away?
$1500 is cheap then.
Lawsuits are always about poorly written releases.
Well written releases never are in cases that are reported, never appealed. A well written release is recognized by all sides as an effective document in stopping a lawsuit. As long as your state law supports the use of a release, a well written release will not show up in court. Good companies that hire an attorney knowledgeable about their operation or program and versed in writing releases do not show up in court.
So spend the money and have your release written by an expert. Or don’t spend the money and stay up nights hoping no one is ever hurt, no one ever sues and your insurance company will always be there to back you up.
The simple fact is a law school takes three years after college and a test by the state. After that an attorney must take classes every couple of years to stay up to date. Writing releases is difficult and the state requires that training so you do it correctly. They are difficult, complicated and require specific skills. Hire an attorney and do it right.
How is that surgery going?
For additional information about these issues read these articles. From my bog:
Four State Supreme Courts Reverse their Positions on Release (http://rec-law.blogspot.com/2008/02/four-state-supreme-courts-reverse-their.html)
Is your Release and Risk Management Program Up To Date? (http://rec-law.blogspot.com/2008/04/is-your-release-and-risk-management.html)
Releases 101 (http://rec-law.blogspot.com/2008/02/releases-101.html)
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Seriously resorts need to figure things out or they are always going to be sued!
Posted: May 20, 2010 Filed under: Ski Area Leave a commentChair Lifts’ Stop on a Dime according to ski area guests!
This story is about a five year old boy who was injured when he fell out of a chair lift and was dragged by the chair injuring him.
The article quotes the family saying the chair lift operator did nothing resulting in the child’s injuries. The resort says the operator acted properly. Both statements conflict and make the resort out to be the liar.
Both are right probably. Resorts never explain how chair lift’s work. Ski areas never explain that chair lifts take 20 feet or more to stop. They never explain that if you were to stop the lift immediately you would catapult riders out of the lift.
The injured boy’s father is quoted saying “Parker’s father said when he looked over at the chair lift operator, she was looking down and didn’t notice the accident until the chair had dragged him 10 to 15 feet.” Ten to fifteen feet is well within the normal stopping distance of a lift.
Why doesn’t the resort say that? Why doesn’t the resort tell everyone riding a lift that lifts don’t stop immediately for three reasons?
· It would catapult everyone off the lift.
· If it is difficult to do.
· It would damage the lift.
However, no, the resort responds the same way each time making them look dumb and get a new name. DEFENDANT!
See Ten Reasons Why People Sue and see the article 5-Year-Old Boy Dragged By Sierra Ski Lift.
What do you think? Leave a comment.
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http://www.thebostonchannel.com/irresistible/22808308/detail.html
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Zip lines, BSA and Lawsuits
Posted: May 20, 2010 Filed under: Zip Line 2 CommentsA 44 year old man took his children to a BSA Scout-O-Rama. At the event, he was the first adult to try the Zip Line. According to the complaint, instead of being attached to a metal ring, he was attached to a nylon thread that failed when he jumped off the tower.
He fell 25 feet suffering severe injuries. He is suing the Boy Scouts for his injuries.
See Boy Scouts Sued for Catastrophic Personal Injuries
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New Hampshire agrees not to pursue Scott Mason for Rescue Costs
Posted: May 19, 2010 Filed under: Search and Rescue (SAR) Leave a commentHowever, they can still sue you if you get lost in new hampshire
The new hampshire Fish and Game and the new hampshire Attorney General agreed not to peruse additional search and rescue costs against Scott Mason. Scott was the injured hiker who after self rescuing and almost reaching safety was rescued and charged $25,000 for the rescue.
See Give me a break! Teen charged $25K for a rescue he did not need, Update: Give me a break! Teen charged $25K for a rescue he did not need and USA Today Updates Issues with New Hampshire Law Billing For SAR’s.
However, the ridiculous law that allows nh Fish & Game to charge for rescues is still in place.
The law, 206:26-bb Search and Rescue Response Expenses; Recovery, allows the state to charge for any rescue if the department determines the rescued person acts negligently. No court, no hearing, just some bureaucrat sitting in an office, (hopefully with a window) deciding how much you should pay.
To stay current on these issues become a fan of No Charge for Rescue on Facebook.
To stay smart, stay out of new Hampshire.
See Reimbursement Request Will Not Be Pursued for 2009 Rescue of Hiker Scott Mason
For more discussions about charging for Search & Rescue see Search & Rescue and charging for it and Vermont getting serious about charging for Search and Rescue. For a great post on the right to do we want to do in the wilderness see Jon Heshka and the Right of the Individual to Die Doing What We Love.
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Gross Negligence beats a release…but after the trial
Posted: May 18, 2010 Filed under: Climbing Wall, Release (pre-injury contract not to sue) Leave a commentAre you a climbing wall or a falling wall?
A judge has allowed a new trial in a lawsuit against a climbing wall. The trial occurred on whether a release barred the claims of the plaintiff. The jury ruled the release did bar those claims.
On motions, the plaintiff’s attorney argued the issue of gross negligence should have been heard by the jury. The judge agreed and will reschedule another trial on the issue.
Whether or not a release ends a lawsuit is an issue of law. The judge should have ruled on that issue prior to the trial. Either the defense attorneys did not present the release issue correctly or the judge did not rule on the issue as a matter of law.
Furthermore, the issue of gross negligence should have been argued at the first trial and should be barred from a new case. The issue on getting a new trial is not what the attorneys forgot to do, but whether there was no evidence of the evidence was interpreted incorrectly by the jury.
However, here is another kicker. The issue is not about an injury from climbing on a climbing wall, even though the suit is against a climbing wall company. The fact issue is the climbing wall has a bag, probably a stunt bag, that the guests are encouraged to fall into. The bag is designed to catch a 250 pound person on a five story fall. The plaintiff fell into the bag and sustained injuries. The plaintiff fell 28 feet into the bag when he suffered his back injury. It does not appear that the bag is used to catch falling climbers but was another type of activity offered by the climbing wall.
The plaintiff, a chimney sweep, will never be able to be a fireman. I wanted to be a fireman when I grew up……
See New tack allowed on lawsuit over back injury.
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